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Courts of South Africa

South Africa has a number of different types of courts. Which court you approach or will hear your case will depend on the case. The courts include:

The Constitutional Court

Supreme Court of Appeal

High courts

Circuit courts

Special income tax courts

Labour courts

Land claims court

Magistrate's courts

Equality courts

Small claims courts

Child justice courts

Community courts

Sexual offences courts

Children’s courts

More information about each of these courts are available from the Department of Justice and Constitutional Development here.

The Magistrates’ Courts

The Magistrates courts are the lower courts which deal with the less serious criminal and civil cases. They are divided into regional courts and district courts. In Criminal Courts the state prosecutes people for breaking the law. Criminal Courts can be divided into two groups:

Regional Magistrate's Courts

Ordinary Magistrate's Courts (also called District Courts)

The Regional Magistrates' Courts at present only deal with criminal cases whereas the district Magistrates' Courts deal with criminal and civil cases. The magistrate makes the decisions in a Magistrate's Court sometimes with the support of lay assessors.

Magistrate's Courts can be divided into either criminal courts or civil courts.

The Regional Magistrates’ Courts deal with more serious cases than the ordinary Magistrates’ Courts - for example, murder, rape, armed robbery and serious assault. The Regional Magistrates’ Courts do also have civil jurisdiction for cases between R100 000 and R300 000.

In terms of the Criminal Law (Sentencing) Amendment Act (No 38 of 2007) a Regional Magistrate's Court can sentence a person who has been found guilty of offences that include murder or rape to imprisonment for life. The Court can also sentence people who have been found guilty of certain offences such as armed robbery or stealing a motor vehicle to prison for a period up to 20 years. A Regional Magistrate's Court can impose a maximum fine of R300 000.

The district courts try the less serious cases. They cannot try cases of murder, treason, rape, terrorism, or sabotage. They can sentence a person to a maximum of three years in prison or a maximum fine of R100 000.

The ordinary Magistrates' Courts can hear civil cases when the claims are for less than R100 000. They cannot deal with certain matters, such as:

divorce;

arguments about a person's will;

matters where it is asked if a person is mentally sane or not.

The most serious criminal matters are heard in the High Court. There are also a number of magistrates' courts that are specialised to be better able to deal with certain types of matters, such as the children's courts, sexual offences courts, etc.

Child Justice Courts

The child justice system tries to make sure that children under the age of 18 years do not commit a crime at all. If it is believed they have committed one and a case is opened against them, the law must deal with them looking at their age. This might sometimes be about not going to court, but finding another way to understand and change the child.

If they are found guilty of the crime the most important thing should be to try find a way that makes sure they return to their community changed in a way that will make sure they will not repeat the crime.

The child justice system is also about protecting communities from children who do crime, but it wants it done in a way that is different from how the criminal justice system works for example it says that if a child is arrested they must be assessed by someone called a probation officer before they appear in court. Even though it is like the child coming to court for the first appearance, at this time questions asked are about understanding the child and what caused what happened, its called inquisitorial in nature. The outcomes can be for the case to go through a process different from the courts. For example the child can accept they have done what it is said they did and there would be no trial, but just sentencing of the crime done.

Police are also encouraged not to put children in jail, unless there is nothing else they can do.

If found guilty a child's sentence can be to do work for the community, paying back the person wronged or being sent to a child or youth centre which focuses on changing children who have committed crimes and others. Sending a child to jail must be the last option and if done, must be for the shortest time possible.

Also important to know is that anyone under the age of 18 is a child and a child of 14 years or younger cannot be send to jail. Children of 10 years and younger cannot commit a crime since they are not expected to be able to tell the difference between wrong and right.

Maintenance Court

The Maintenance Court is situated in the Magistrate's Court. Mothers or fathers who do not get support for their children from the other parent can go there to claim maintenance from that parent.

There is a Maintenance Officer in charge of the Maintenance matter. It is not necessary to have an attorney to claim maintenance. The Maintenance Officer will help you to fill in the necessary forms.

If one of the parents of the child refuses to pay maintenance then the case must go to the Maintenance Court. If so, the Maintenance Officer will give details on when to appear in court and which court to go to.

Sexual Offences Courts

As part of responding to the problem of sexual offences, special sexual offences courts are set up across the country. They are built in such a way that children and victims get the necessary care, respect and support at the court.

For example, there is a waiting room to make sure that the woman or the child who is a victim of e.g. rape, does not come in contact with the person accused. Toys are also available to make sure a relaxed atmosphere is created for a child.

In some cases television is used to make sure that evidence by the victim in given in a comfortable way.

The other programmes that is also implemented is that it is now made easier for victims to lay a charge by opening a case at a one-stop centre called a Thuthuzela Care Centre which is at a hospital.

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Children's Courts

Children's Courts have been established for circumstances where for example, a person or parent has the responsibility to look after the daily needs of a child (child custody). That means they will provide a home for the child, feed and support them, look after their daily needs and make sure they get an education.

The decision about who gets child custody is sometimes decided by a court, in the case where the parties are not agreeing.

Children are called legitimate if they are born to married parents, or their parents marry later. Children born outside of marriage are called illegitimate.

In the past, illegitimate children were treated fair by the law and society. But today's law makes sure that a child does not get blamed because their parents chose not to be married. For every child, no matter if they are legitimate or illegitimate, the law and court will look at what is the best thing for the child. That is how decisions about things like child custody are made.

The person who has custody is normally also the child's guardian, which means looking after what belongs to the child, for example money or property they receive from someone or somewhere. Such a person also signs contracts for the child, including going to court for the child as well as agreeing to the child getting married before 18 years of age. The mother of an illegitimate child is the "natural" guardian, but this can be changed by a court.

In the case of an illegitimate child, a father cannot make decisions as a parent about the life of their child, but must, in terms of the law, support the child. He can also not see the child if and when he wants of the mother does not agree.

But remember that we said that a court can decide to change all of this if it believes it is in the interest of the child. That means the father can always go to court to get child custody and guardianship.

Adoption is a way for a grown up person or people to get custody and guardianship over a child. This is done at a children's court by anyone who is close or can show that they are interested in the child growing up in a safe and positive way. It can be the father, married people, a single person or family.

But also very important to know is that if the parents are not married, the mother must first get permission of the natural father before giving away their child for adoption.

Equality Courts

Equality Courts have been set up to help someone who believes that they have suffered unfair discrimination, hate speech or harassment. These courts make sure that it is easy for someone with such a case to bring their case to the court and that the issue is finalised quickly.

Anyone can take a case to the Equality Court, even if you are not directly involved in what happened. This means a complaint to the court can be made against someone or an organisation you believe have failed to respect the rights of another person. The Equality Courts deal with complaints that are about unfair discrimination, hate speech or harassment. If you believe you or someone was treated badly because of hatred or bias based on one of the following:-

race

gender

pregnancy

marital status

ethnic or social origin

colour of your skin

sexual orientation

disability

religion, conscience & belief

culture

language

birth

nationality

HIV status, or perceived status

economic or social status or

family responsibility and status

You can take your complaint to your nearest Equality Court. The establishment of the Equality Courts seeks to achieve the expeditious and informal processing of cases, which facilitate participation by the parties to the proceedings, and also seeks to ensure access to justice to all persons in relevant judicial and other dispute resolution forums.

Small Claims Courts

Small Claims Courts have jurisdiction to hear any civil matter involving less than R15 000 (unless both the person suing and the person being sued agree to limit the claim to less R15 000). But some cases cannot be taken to the Small Claims Court even if they are for R15 000 or less. Examples of these claims are:

divorce

matters concerning a will

malicious prosecution

wrongful imprisonment

seduction

breach of promise to marry

There is no magistrate or judge in the Small Claims Court, but the presiding officer is a Commissioner who is usually a practicing advocate or an attorney who acts as a commissioner free of charge. The Commissioner listens to both sides and asks all the questions since you cannot use a lawyer in the Small Claims Court, but you can get advice from a paralegal or a lawyer to prepare for your case.

No appeal may be filed against the judgment or order of the Small Claims Courts. The court proceedings may however be referred to the High Court for review on three grounds, namely: absence of jurisdiction by the court; interest in the cause, bias, malice or corruption on the part of the commissioner and gross irregularity with regard to the proceedings. You can contact your nearest Small Claims Court through your nearest Magistrate's Court.

Divorce Courts

Divorce Courts hear any matters relating to divorce. If you need to apply for a divorce, you can visit a Magistrate's Court in your area.

Please consider making a donation to Silent Rights to enable us to keep helping victims of abuse and violence. You can make a donation through paypal here.

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